Giovanni Naselli v Caisse Auxiliaire d'Assurance Maladie-Invalidité and l'Institut National d'Assurance Maladie-Invalidité (83/77)

II —Observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

Mr Naselli is of the opinion that the issue should be determined in the light of the Court's interpretation of Article 11 (2) of Regulation No 3 in its judgment of 10 December 1969 (Case 34/69 Caisse d'assurance vieillesse des travailleurs salariés de Pans v Jeanne Duffy [1969] ECR 597) and its judgment of 15 May 1974 (Case 184/73 Bestuur van de Nieuwe Algemene Bedrijfsvereniging v H. W. Kaufmann [1974] ECR 517) according to which that article is ‘the counterweight to the advanuges which Regulations Nos 3 and 4 secure for workers’. The apparent consequence of this is that the institution of the Sute in which the entitlement to the pension has been acquired by applying Community rules, that is to say by aggregating the insurance periods (the Iulian institution), and not the institution of the Sute where the entitlement exists under an independent system (the Belgian institution), may properly apply where necessary the reduction of benefit.With regard to the application of Article 28 (3) of Regulation No 3 which INAMI invokes as justification for reducing the supplement to the pension payable by Belgian insurance, Mr Naselli points out that this provision has no purpose if the worker is entitled to benefits solely under the laws of one Member State (judgment of 28 May 1974 in Case 191/73 Rudolf Niemann v Bundesversicherungsanstalt fur Angestellte [1974] ECR 571). Therefore the Belgian institution is not entitled to take account of increases in the Italian pension in order to reduce the supplement to the Belgian pension which is only one element of the benefit payable under Belgian legislation alone.Should the Court answer the first question in the affirmative the Belgian pension would have to be reduced as provided for in Article 9 (2) of Regulation No 4 which would otherwise have no meaning. Since this provision applies, in the absence of any further indication, to benefits awarded pursuant to the provisions of Article 28 of Regulation No 3 it also applies to benefits entitlement to which is acquired under an independent system.CAAMI relies on the judgment of 6 December 1973 (Case 140/73, Direction régionale de la sécurité sociale de la région parisienne and Caisse régionale d'assurance maladie de Paris v Carmela Mancuso and Caisse nationale d'assurance vieillesse des travailleurs salariés [1973] ECR 1449) to assen that if a Belgian pension cannot be apportioned the Belgian rules against the overlapping of benefits apply. Article 9 (2) of Regulation No 4 only applies when the benefit which has to be reduced has been acquired under a rule of aggregation, and this is not the case in the main action.INAMI extracts from the case-law of the Court and the opinion of Mr Advocate General Trabucchi in the Mancuso case (referred to above) and in Case 50/75 Caisse de pension des employes privés v Helga Massonet [1975] ECR 1473 the principle that the advantage derived from Community regulations should be counterbalanced by the application of the Belgian provisions relating to the limitation of overlapping.Article 9 (2) of Regulation No 4 does not apply here since it only applies where, for the purpose of awarding a benefit, the apportionment rules laid down at Community level and the rules on overlapping at national level have to be applied simultaneously.The Commission points out that the first question in fan raises two questions concerning the interpretation of Article 11 (2) of Regulation No 3: on the one hand the question what is a provision for reduction or suspension within the meaning of the before-mentioned Article 11 (2) and especially whether Article 70 (2) of the Law of 9 August 1963 is such a provision and, on the other hand, the question in what circumstances such provisions may be applied in accordance with Article 11 (2) and, in particular, the question whether these provisions are applicable if the benefits were acquired without Regulations Nos 3 and 4 having to be applied.Article 70 (2) of the Law of 9 August 1963 does not seem to be a general clause forbidding the overlapping of invalidity benefits and other social security benefits or other income or because of gainful employment but a provision which specifically applies when benefits for incapacity for work have been granted as a result of an injury; that is to say primarily as a result of an accident, which gives rise to a claim for compensation either under the general law or under some other law. Such an interpretation is supported by the last paragraph of the said article which states on the one hand, that the body providing the insurance is automatically subrogated to the recipient and, on the other hand, that the agreement between the person liable to pay the compensation and the recipient is not enforceable against the body providing the insurance without the consent of the latter.Even if the illness is presumed to be an injury can the Italian institution which awards Mr Naselli a proportional invalidity pension be regarded as being liable to pay the compensation for the injury? That appears to be absurd in so far as it was in fact in Belgium that Mr Naselli fell ill, obtained allowances for prolonged incapacity and long-term sickness benefit all of which were later converted into an invalidity pension.If the provisions of the abovementioned Article 70 are compared with those of Article 23 (1) of the Royal Decree of 19 November 1970 relating to the system of invalidity pensions for mine-workers it can be seen that Article 23 (1) does not refer either to injury or to compensation arising under the general or any other law or to the subrogation of the body providing the insurance or to any agreement between the party liable to pay the compensation and the recipient. Why did not the Belgian legislature, which was concerned with the same risk, reproduce the same wording as that used in the Law of 1963 if it intended to attain the same objective in these two provisions? However it is for the trial judge to determine the meaning of his own country's legislation and it is advisable, for the purpose of answering the questions raised, to consider whether the article in question might be a national provision against the overlapping of benefits.Article 11 (2) of Regulation No 3 first of all lays down a principle, namely that provisions against the overlapping of benefits in national legislations may be applied to workers covered by Regulation No 3 except in the case of benefits of the same kind — invalidity, old-age and death benefits (pensions) — acquired in accordance with Article 28. Only apportioned pensions of the same kind acquired by aggregation fall within the exception provided by the last sentence of Article 11 (2). The logical consequence is that, where an old-age or invalidity pension acquired under national legislation alone and another pension of the same kind acquired under the legislation of another Member State overlap, the national provisions against the overlapping of benefits apply as provided for in the first sentence of Article 11 (2). This inference does not seem to be so logical if the Court's interpretation of Article 11 (2) (in the before-mentioned Kaufmann judgment [1974] ECR 517 and the Duffy judgment [1969] ECR 597) is considered. If therefore Article 11 (2) were to mean that national provisions against the overlapping of benefits are enforceable against the person entitled to an invalidity or old-age pension acquired under national legislation alone it would be a provision similar to the one which the Court correctly held to be incompatible with Article 51 of the Treaty (cf. Case 24/75 Teresa and Silvana Petroni v Office nationale des pensions pour travailleurs selariés (ONPTS) [1975] ECR 1149 and Case 62/76 Josef Strehl v Nationaal Pensioenfonds voor Mijnwerkers [1977] ECR 211).In the main action in this case the Belgian institution made an apportionment and awarded a supplement on the basis of Article 28 (3) of Regulation No 3 which in the meantime the Court in the above-mentioned Case 191/73 (Niemann [1974] ECR 571) had held to be incompatible with Article 51 of the Treaty. The Belgian institution has therefore made a mistake and should have awarded Mr Naselli the pension acquired under national legislation alone. But could it then avail itself of Article 11 (2) for the purpose of applying its national provision against the overlapping of benefits? If account is taken of the above-mentioned decided cases of the Court the answer is in the negative. In fan Mr Naselli had not acquired the Italian proportion of his pension or his Belgian pension on the basis of Regulation No 3 which did not enter into force until 1 January 1959. The Commission is of the opinion that the apportioned Italian pension could have been awarded on the basis of a bilateral Convention between Belgium and Italy (moreover the Belgian institution at the time refused to award him an invalidity pension which it could not do pursuant to Article 27 which provides for the aggregation of periods in order to maintain the right to benefit).The second question is limited to asking whether Article 70 (2) of the Law of 9 August 1963 is in fact a provision for reduction of benefit within the meaning of Article 11 (2). Article 9 (2) of Regulation No 4 only applies to the reduction of pensions calculated pursuant to Article 28 of Regulation No 3, that is to say of apportioned and not independently awarded pensions, since in the converse case it is impossible to know by what proportion the amount to be deducted must be reduced. This system may appear to be illogical in so far as the national provisions against the overlapping of benefits are not under the provisions of Article 11 (2) applicable to pensions acquired under Article 28. But the last sentence of Article 11 (2) states clearly that the benefits in question must be of the same kind. The national rule against the overlapping of benefits may therefore only be applied to the apportioned pension within the limits laid down by Article 9 (2) of Regulation No 4 where invalidity or old-age benefit acquired in accordance with Article 28 of Regulation No 3 overlaps another social security benefit, for example sickness insurance.The Commission therefore submits the following answers to the questions referred to the Court:(1) Provisions in the legislation of one Member Sute for the reduction or suspension of benefits overlapping other social security benefits only apply under Article 11 (2) of Regulation No 3 to insured persons as far as concerns the benefits acquired by applying the said regulation.(2) Article 9 (2) of Regulation No 4 must be interpreted as meaning that where a pension awarded in pursuance of Article 28 of Regulation No 3 may be reduced under Article 11 (2) of the same regulation the amount to be deducted shall be apportioned in the same proportions as the benefit has itself been reduced pursuant to Article 28 of the regulation.The plaintiff in the main action represented by Mr D. Rossini, Director of the social security service ‘Patronato A.C.L.I.’, INAMI, represented by Mr Masquelin, Advocate at the Brussels Bar, and the Commission of the European Communities represented by its Legal Adviser, Mrs M.J. Jonczy, acting as Agent, presented oral argument at the hearing on 17 November 1977.The Advocate General delivered his opinion at the hearing on 15 February 1978.